Automatic Temporary Restraining Orders
The moment that a spouse or domestic partner sign the Petition for Dissolution of Marriage or Domestic Partnership, Legal Separation, or Nullity of Marriage, an individual becomes bound by the contents of the Summons which must accompany the initial filing. Family Code Section 2040 sets forth what legal professionals often refer to as the automatic temporary restraining orders in the summons (ATROS). For most parties involved in a divorce or separation, it serves to enforce the following actions:
- Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
- Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Similarly, once the Summons is served upon the Respondent they likewise become bound by the ATROS. Failures to comply with Section 2040 can result in contempt citations or allegations for breach of fiduciary duty. There are other restrictions under ATROS that a Sacramento family law attorney can discuss in more detail with persons involved in divorced proceedings.
Important Exceptions in ATROS
As with any rule or law, ATROS contains important exceptions which unfortunately are often abused. The main reason is that each party has the right to arguably raid the community property assets or bank account to hire an attorney.
The legislative intent is to encourage parties to be able to retain competent legal counsel for their divorce or legal separation. It is important to keep in mind that fees are limited to what is reasonable. Additionally, a spouse who spends money in such a manner is required to account to the other for how these monies were spent.
Unfortunately, this provision is easily and often abused. A spouse or partner can “park” money with their attorney. Because most family court judges are reluctant to second guess attorneys on what is “reasonable“, such transactions are rarely scrutinized. Of course, this is different from extreme cases such as emptying the bank account to take a trip to Hawaii as stress relief from the marital break-up.
In the end, while the government can’t and shouldn’t micro-manage the daily lives of people in divorce, there is an element of voluntary compliance with the ATROS. It is the hope that spouses and domestic partners will behave honorably, but often that is not the case. And while one party cannot control what the other does in a divorce proceeding, each party should read the summons very carefully and give the required notices to insulate any claims of breached statutory duties. Failure to abide a summons can have serious financial consequences and implications in a divorce proceeding for either party.
